Irwin v. State

229 N.E.3d 567

Alexander R. IRWIN, Appellant-Defendant

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 23A-CR-501

Court of Appeals of Indiana.

Filed February 28, 2024

Appeal from the Wayne Superior Court, The Honorable Gregory A. Horn, Judge, Trial Court Cause No. 89D02-2106-F2-000011

Attorneys for Appellant: Jessica L. Richert, Richmond, Indiana, Josiah J. Swinney, Fishers, Indiana

Attorneys for Appellee: Theodore E. Rokita, Indiana Attorney General, Courtney L. Staton, Deputy Attorney General, Indianapolis, Indiana

Felix, Judge.

Statement of the Case

[1] Alexander R. Irwin was convicted of dealing in cocaine, dealing in a narcotic drug, and dealing in methamphetamine. Irwin presents two issues on appeal, which we restate as follows:

1. Whether the trial court abused its discretion when it admitted security camera footage into evidence; and

2. Whether the trial court abused its discretion when it refused to give Irwin’s proffered jury instruction.

[2] We affirm.

Facts and Procedural History

[3] In the spring of 2021, Detective Chase Patton of the Wayne County Drug Task Force received three anonymous tips about Irwin dealing drugs out of his apartment in Richmond, Indiana. As a result, Detective Patton began conducting surveillance on the apartment.

[4] At the time, Kacey Lawrence was dating Irwin and living with him at the apartment. On May 17, 2021, Detective Patton observed Lawrence leave the apartment and get into a vehicle with an individual he recognized from past drug investigations. Since Detective Patton was conducting surveillance in an unmarked vehicle, he called a patrol officer to follow Lawrence in the vehicle, and that officer conducted a traffic stop. The officer found Lawrence with a bag of methamphetamine, and Lawrence told law enforcement that Irwin was dealing drugs out of the apartment. The officer arrested Lawrence for possession of methamphetamine.

[5] During the three weeks Detective Patton conducted surveillance on the apartment, he observed an "uncommon amount of visitors" coming in and out of the back entrance. On two occasions after Lawrence’s arrest, Detective Patton asked patrol officers to follow the vehicles of visitors who he observed leave the apartment. In both instances, officers conducted a traffic stop and found the passengers to be in possession of methamphetamine. Thereafter, Detective Patton applied for a search warrant on the apartment to search for and seize illegal drugs.

[6] On June 2, 2021, law enforcement executed the search warrant. The officers found Irwin on the back porch of the apartment with $4,500 in cash and three bags of narcotics on his person. Law enforcement found Lawrence inside the apartment and began questioning her. Lawrence told police where firearms and narcotics could be located. In the apartment, officers found narcotics, methamphetamine, firearms, syringes, baggies, and a digital scale. Irwin was arrested and charged with dealing in cocaine, a Level 2 Felony;¹ dealing in a narcotic drug, a Level 2 Felony;² and dealing in methamphetamine, a Level 2 Felony³.

[7] During Irwin’s arrest, Lieutenant Chad Porfidio met with Irwin’s landlord to retrieve security camera footage from the property. The building had a security camera facing the back entrance to the apartment, and the landlord kept the video recordings saved on a computer, Lieutenant Porfidio downloaded footage from the camera for the 30 days leading up to Irwin’s arrest onto a hard drive and collected it for evidence. Detective Patton reviewed the entire video, highlighted the relevant excerpts of footage, and took notes on those excerpts.

[8] At trial, the State offered the relevant excerpts of security camera footage (the "Security Footage") into evidence. Initially, the State attempted to authenticate the Security Footage through Detective Patton's testimony about reviewing the video in its entirety. Irwin objected, and the trial court sustained the objection. Later, the State presented testimony from Lieutenant Porfidio to authenticate the Security Footage. Lieutenant Porfidio testified about his familiarity with security camera systems like the one used at the apartment, and he testified that the Security Footage had not been altered. Irwin renewed his objection, and the trial court admitted the Security Footage over his objection.

[9] After the State rested its case, Irwin planned to call Lawrence to the witness stand to testify. At the time, the parties and the trial court were aware that, if called to testify, Lawrence intended to invoke her Fifth Amendment privilege against self-incrimination, so the court excused the jury from the courtroom prior to Lawrence’s testimony. During direct examination, Lawrence responded to each question asked of her by invoking her Fifth Amendment privilege to remain silent.

[10] Following Lawrence’s testimony, the jury returned to the courtroom and Irwin rested his case. Prior to closing arguments, Irwin requested the trial court to instruct the jury that Lawrence took the witness stand and invoked her Fifth Amendment privilege. The court denied the proposed instruction. The jury found Irwin guilty as charged, and Irwin now appeals.

Discussion and Decision

1. The Security Footage Was Properly Authenticated and Admissible

[1–3] [11] Irwin argues that the trial court erred in admitting the Security Footage without proper authentication. We re view the admission of evidence for abuse of discretion. McCallister v. State, 91 N.E.3d 554, 561 (Ind. 2018). "We will reverse only if the trial court’s ruling was clearly against the logic and effect of the facts and circumstances before it." Id. (quoting Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014), cert. denied).

[4–8] [12] The State offered the Security Footage under the silent-witness theory. Videos and photographs are often offered as demonstrative evidence, but, under the silent-witness theory, they are offered as substantive evidence. Knapp, 9 N.E.3d at 1282. "Evidence offered for substantive purposes acts as a silent-witness[ ] as to what activity is being depicted whereas evidence offered for demonstrative purposes is merely an aid[ ] that assist[s] in a human witness's testimony." Kirby v. State, 217 N.E.3d 575, 583 (Ind. Ct. App. 2023) (quoting Knapp, 9 N.E.3d at 1282) (internal quotation marks omitted). When videos or photographs are admitted as substantive evidence, "the foundational requirements … are vastly different from the foundational requirements for demonstrative evidence." Smith v. State, 491 N.E.2d 193, 196 (Ind. 1986). The foundation for videos or photographs as demonstrative evidence requires testimony that the evidence "accurately depict[s] the scene or occurrence as it appeared at the time in question." Id. The foundation for the admission of videos or photographs as substantive evidence requires "a strong showing of authenticity and competency, including proof that the evidence was not altered." McCallister, 91 N.E.3d at 561-62 (citing Knapp, 9 N.E.3d at 1282).

[9, 10] [13] To properly authenticate a piece of evidence, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Ind. Evidence Rule 901(a). "In order to authenticate videos or photographs using the silent-witness theory, there must be evidence describing the process or system that produced the videos or photographs and showing that the process or system produced an accurate result." McFall v. State, 71 N.E.3d 383, 388 (Ind. Ct. App. 2017) (citing Evid. R. 901(b)(9)). Surveillance video footage may be properly authenticated and admissible under the silent-witness theory when the proponent presents "testimony from someone with knowledge on the security system that produced the video or image, on the integrity of the system’s process, and on whether [the] video or image was altered." Stott v. State, 174 N.E.3d 236, 246 (Ind. Ct. App. 2021).

[11, 12] [14] First, we note that, at trial, Irwin did not object to the admission of the Security Footage on the grounds raised on appeal. Irwin objected to the admission of the Security Footage arguing that the business records exception applied, and Lieutenant Porfidio had not viewed the footage; he did not mention the silent-witness theory or its foundational requirements in his objection. "[A] defendant may not object to the admission of evidence on one basis at trial and then raise a different basis on appeal." Ward v. State, 203 N.E.3d 524, 531 (Ind. Ct. App. 2023) (citing Bradfield v. State, 192 N.E.3d 933, 935 (Ind. Ct. App. 2022)). Thus, this evidentiary argument is waived. Id.

[15] Waiver notwithstanding, the State provided sufficient evidence to authenticate the Security Footage. Lieutenant Porfidio testified about his familiarity with the type of security system used at the apartment and his conversation with the landlord. The testimony provided that; (1) the security system was located In a locked room; (2) the landlord was the only person with access to that room; (3) the landlord did not alter the footage; (4) Lieutenant Porfidio downloaded the Security system on the day of the arrest; and (5) there was no way the Security Footage could have been manipulated when Lieutenant Porfidio downloaded it from the security system. The State provided the foundation to demonstrate the Security Footage was authentic and unaltered. We hold that the trial court did not abuse its discretion by admitting the Security Footage.

2. The Trial Court Did Not Abuse Its Discretion by Rejecting Irwin’s Proposed Jury Instruction

[13–15] [16] Irwin argues that the trial court violated his Sixth Amendment right⁴ to a complete defense when it rejected his proffered jury instruction. We review the trial court’s decisions regarding jury instructions for abuse of discretion, Miller v. State, 188 N.E.3d 871, 874 (Ind. 2022), including "the court’s refusal to give a tendered instruction," Elmer Buchta Trucking, Inc. v....